5 Organisation and delivery of psychiatric services5.6 Human rights and mental health

5.6.3 Human rights in forensic and general psychiatric practice

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Written by Resident Doctor Committee · Published

Convention rights and how they bind

The Human Rights Act 1998 gives Convention rights domestic effect. Section 6 bars public authorities, including NHS bodies, police and tribunals, from acting incompatibly with them, in community as well as hospital care.

Class

Articles

What it permits

Absolute

3: no torture or inhuman or degrading treatment

No balancing once the threshold is met

Limited

2: life; 5: liberty; 6: fair process

Each has its own scope and permitted limits

Qualified

8: private and family life; 9: religion; 10: expression; 11: association

Interference needs a lawful basis, legitimate aim, necessity and proportionality

Article 2: the duty to protect life

Article 2 requires adequate protective systems and, in defined circumstances, protection of an identified person. It does not guarantee against every death.

  • Osman v UK established the police duty to protect an identified person from a real and immediate threat to life from another person's crime.

  • The duty arises when authorities know, or ought reasonably to know, of the risk, and requires reasonable measures within their powers.

  • Osman warnings are police warnings given to a named person whose life is under threat.

Case

Facts

Holding

Savage v South Essex Partnership NHS Foundation Trust

Detained patient died by suicide

The duty applies to psychiatric detention

Rabone v Pennine Care NHS Foundation Trust

Informal patient at known suicide risk died on home leave

The duty can extend to informal patients where responsibility and risk justify it

Maguire

Care home resident under Deprivation of Liberty Safeguards died of physical illness

Not every clinical failure in care breaches Article 2

Article 5: detention and review

  • Article 5(1)(e) permits detention for mental disorder; Winterwerp requires reliable medical evidence except in emergency, a disorder warranting confinement, and continued justification.

  • Article 5(4) gives speedy judicial review with power to release.

  • HL v United Kingdom (Bournewood) exposed the lack of safeguards for a compliant, incapacitated informal patient, and the Deprivation of Liberty Safeguards followed.

  • In June 2026 the Supreme Court rejected the 2014 Cheshire West test of continuous supervision and control without freedom to leave; assessment now weighs the type, duration, effect and implementation of restrictions.

Qualified rights in everyday care

  • Restrictions on contact, post, searches or devices need a lawful basis, individual justification, review and a record, so blanket rules fail.

  • Herczegfalvy requires convincing evidence of therapeutic necessity for treatment without consent; a second opinion appointed doctor's certificate does not prove Convention compliance.

Remedies and the wider framework

  • Section 3 of the Human Rights Act requires compatible interpretation, and section 4 lets courts declare legislation incompatible without invalidating it.

  • The UN Convention on the Rights of Persons with Disabilities is not incorporated into UK law; its Committee opposes disability-based detention, which the European Convention permits.

5.6.3 Human rights in forensic and general psychiatric practice | MRCPsychiatrist